Bridges v Pelly

[2002] HCATrans 525

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S7 of 2002

B e t w e e n -

JACQUELINE ELLEN BRIDGES

Applicant

and

ELIZABETH MARY PELLY (as executrix of the estate of the late Anthony Darcy Pelly)

Respondent

Application for special leave to appeal

GAUDRON J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 DECEMBER 2002, AT 11.56 AM

Copyright in the High Court of Australia

MRS J.E. BRIDGES appeared in person.

MR A.J. SULLIVAN, QC:   May it please the Court, I appear for the respondent. (instructed by Blake Dawson Waldron)

GAUDRON J:   Yes, Mrs Bridges.

MRS BRIDGES:   First of all, your Honour, I would like to know whether you have had a chance to look at my oral arguments.

GUMMOW J:   Yes.

GAUDRON J:   Your written submissions, yes, we certainly have; we have read everything with which we have been provided.

MRS BRIDGES:   Okay.  And the medical literature in the supplementary application book on pages ‑ ‑ ‑

GAUDRON J:   No, we do not normally do that.  Unless there is something you particularly want to draw our attention to, we confine ourselves to the matters that are raised by the documents.

MRS BRIDGES:   Well, that was pages 14 to 18, which explains the rest of that medical literature.  It is a fairly compact explanation of the articles and it covers a question of public importance too and it is important to read those to get an understanding of what the problem is.

GAUDRON J:   Well, you must draw our attention to what you say we must read, but I think I should tell you that a hearing such as this is not one that is directed to reviewing the evidence; it is directed solely to the question whether there has been an error in the court below, which should be corrected in this Court.  For that purpose, we do not review evidence; we just look to see where is the error of law.

MRS BRIDGES:   Yes.  Well, my argument is mainly about reviewing the evidence.

GAUDRON J:   Exactly.

MRS BRIDGES:   Well, in the SRA v Earthline Constructions, they point out at [74] on page 9 in my yellow book ‑ ‑ ‑

GAUDRON J:   Yes.

MRS BRIDGES:    ‑ ‑ ‑ at the top of the second column ‑ I do not think it is talking just about the appeal court; it is talking about appellant judges reading new matter and forming their own conclusions on the evidence recorded at the trial.

GAUDRON J:   “If their statutory charter so requires or permits.”

MRS BRIDGES:   And I did read the next couple of pages and it seemed to me that the Judges in the High Court were saying that in certain circumstances it was necessary to look at all the evidence again.

GAUDRON J:   In certain circumstances.  Well, first of all, you will have to identify the circumstances which you say require the Court of Appeal to do just that and then you will have to establish that they did not do just that.

MRS BRIDGES:   Well, I think ‑ did I establish it in the submissions?

GAUDRON J:   Well, the problem you have, Mrs Bridges, is that there were findings of fact made against you at first instance, a number of which were based on credibility.  Now, it is not often that you will find errors of law involved in findings of fact based on credibility and that is where you really have to start, to show that there has been some error there and an error of law, not just an error of perception or an error of fact, but a failure to have proper regard to the law that was to be applied.

MRS BRIDGES:   Sorry, I did not hear the very last part.

GAUDRON J:   The error of law is really ‑ well, when I talk about “an error of law”, I am talking about a failure to have proper regard to the law that had to be applied.

MRS BRIDGES:   “The law that had to be applied”, could you enlighten me on that exactly?

GAUDRON J:   The law that had to be applied is the law of negligence, in essence, perhaps the laws of evidence.

MRS BRIDGES:   Well, could you please tell me ‑ ‑ ‑

GAUDRON J:   No, I am sorry, I ‑ ‑ ‑

MRS BRIDGES:   I do not know what you mean by “the law of negligence”.

GAUDRON J:   I am sorry, I cannot.

GUMMOW J:   We cannot, Mrs Bridges, it is not our function really.

MRS BRIDGES:   Well, I have said that he overlooked a large body of evidence, the trial judge, and as you will have read, I have based it on the SRA v Earthline Constructions and I have said that he overlooked that twice ‑ ‑ ‑

GAUDRON J:   That he, sorry?

MRS BRIDGES:   He did it on two occasions, once with Professor Morrison’s reports, especially the second one, because it had to be looked at in chronological order, which neither of the courts did, and the second one was the photographs, and I did find the scrapbook of the photographs in my file, just the other day when I was looking through the file; the photographs that I thought were in with the box of exhibits that was supposed to have been lost at the end of the trial, and also, as well as doing that, he did rely on evidence which is inconsistent with the facts incontrovertibly established by the evidence.

GAUDRON J:   Well, what was that?

MRS BRIDGES:   Well, Dr Rea’s terminology.  He did it twice:  the first one was Dr Rea’s terminology and he just relied on that instead of the scientific criteria provided by Dr Rea, which was in small print in the appeal books, where he talks about the chin projection, so what Dr Rea was indicating was that I was concerned about that and also his wording made it seem like my chin was too big, and it was not, and also I say that that is insecurely based and, as well as looking through the files, I did find some more letters that relate to this and I have put them in the back of page 45 in the oral argument book – and this is just an example to show the next evidence why it is insecurely based because it is a letter written to Dr Rea from my first solicitor in 1983 and it says:

We thank you for your report dated the 16^th June 1983 and not that this report was not solicited by us but by our client on her own initiative.

And, furthermore, on the next page, at the end of that letter, third last paragraph, it says:

Nevertheless, in view of the symptoms present in our mutual client this could be a real possibility.

Talking about damage.  So they could see for themselves that.  And then, the next page, there is a copy of the letter itself, that I did write to Dr Rea on 23 March 1983.  That is on page 47 of the white oral argument book.  Second paragraph, where there is an arrow and an asterisk to show, says:

I went to a solicitor here to see what I could do about my chin as I am quite angry and upset about it, and have been for 1½ years now (I’m talking about what Dr Pelly did) and the fact that I can’t close my mouth properly, and the stiffness and weird felling that goes with it.

So, that was my concern when I went to Dr Rea.

GUMMOW J:   Now, what we have is a 65‑page judgment of the Court of Appeal.

MRS BRIDGES:   Yes.

GUMMOW J:   You have to persuade us that there is an error in that of sufficient importance to warrant a grant of special leave; that is what our task is.

MRS BRIDGES:   Can it be any sort of an error?

GAUDRON J:   No, it has to be an error of law.

MRS BRIDGES:   An error of law.  Well all I can ‑ ‑ ‑

GUMMOW J:   It is a very detailed judgment.

MRS BRIDGES:   Yes.  All I can say about that is that it just has lots of errors in it in itself, even where the respondent here is saying that he relies on pages 2 to 5 of it.  There are mistakes in the reporting of the facts of it, for example, on page 64 of the application book, which is page 2 of the appeal judgment, there are a few mistakes:

She complained to him about her appearance –

Well, I did not do that.  They are small mistakes:

as well was unable properly to close her mouth –

Well, it was not at all, and I have the transcript evidence to show that.  The trial judge said ‑ I do not believe they looked at the transcript evidence properly at all, and, similarly, if both of them had looked at the transcript evidence, they would see that I was concerned about the function, not the appearance; the appearance, if you are trying to close your mouth, but it is the function of it, the appearance is included in the function, when you are sitting there, but they did not take any notice of that.  On page 65, the next page ‑ ‑ ‑

GUMMOW J:   Page 65?

MRS BRIDGES:   Yes, the following page, which is page 3 of the appeal judgment, point (e), number 20, says:

who reported that it would be difficult to do anything about her complaint of a crooked smile –

Now, that was written in a letter, somewhere, but there was also Dr Newing’s notes, which were in the evidence, and that was not taken any notice of by either of the judges, and I have put them in the pink book to show ‑ ‑ ‑

GUMMOW J:   You have to read page 64.  It says:

The principal occasions, in summary, were -

The court is only giving a summary.

MRS BRIDGES:   Sorry?

GUMMOW J:   If you look at page 64 ‑ ‑ ‑

MRS BRIDGES:   Of the application book?

GUMMOW J:   Yes, we are looking at the judgment; you took us to page 65, paragraph (e), the page before.

MRS BRIDGES:   Yes.

GUMMOW J:   See, immediately before little (a), it says:

The principal occasions, in summary, were –

The court is only giving a summary; you cannot fairly criticise them if they do not set everything out when they are trying to give a summary.

MRS BRIDGES:   Well, I do not believe that the summary accurately sums up what my intentions and what I did.  This summary, because if is just a short summary, does not contain as much error, I suppose, as the initial, original judgment, although, if it is repeating what the original judgment said, well, it is containing errors like that, because it is repeating it, but the evidence was not looked at properly by either of the judges.  Because this judgment is more or less repeating what the first one is saying, I have showed how the first one is wrong, in my summary of argument and in my oral argument, which I wrote out in advance, which actually turned out to have all exactly the same points in it, although I had approached it from a different angle, but it came back to the same points.  So, shall I continue with the oral argument?

GAUDRON J:   Yes, please.

MRS BRIDGES:   All right.  So the trial judge relied on Dr Rea’s terminology instead of providing scientific criteria and I put in a section from Makita v Sprowles, this is on page 3 of my oral argument, where they are talking about:

“If Professor Morton’s report were to be useful, it was necessary for it to comply with a prime duty of experts in giving opinion evidence: to furnish the trier of fact with criteria enabling evaluation of the validity of the expert’s conclusions”.

And, further along, quotes from Lord President Cooper, in Davie v The Lord High Provost:

“Expert witnesses . . . their duty is to furnish the judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence” -

that was not done by either of the judges and at the beginning of that I have written down what it did not do.  I said what it was that:

Dr Rea’s terminology suggests from the start the Plaintiff had a concern about the projection of her chin”.  It is agreed that his terminology can suggest undue projection, but nowhere does Dr Rea support this with evidence.  (In fact, his terminology suggests an ‘about turn’ where he writes in 1997 . . . inability to close the lips can result in increased muscle bulk in the mentalis muscle and therefore a prominence”.

This word “prominence” also uses a noun.  Now, I am saying that:

Dr Rea’s terminology does not establish that the Plaintiff –

that is me –

had an overly projecting or prominent chin.

However, in his 1997 report, Dr Rea provided scientific criteria to show that the Plaintiff had a normal chin projection, but the trial judge overlooked this.

And I have put a picture of profile in the book, and if you would like me to point you to the evidence of that.

GAUDRON J:   Well, we are in your hands.

MRS BRIDGES:   Well, if you would like to look at it, it is down here.  Well, there is a picture in the supplementary application book, page 137.  I have actually just put this picture again in colour, which might be better to look at.  Sorry, it was 236.  I also put it in the end of this oral argument book at page 35.  Also, actually, in this scrapbook, that I have found in the file, it has a couple more profile photographs of me.  Now, the scientific evidence is in the pink book.

GUMMOW J:   Now, the red light has gone on.

GAUDRON J:   It means you must complete your submissions.

MRS BRIDGES:   All right, scientific evidence in the pink book at pages 23 to 30, the documentary evidence book, and it is actually on page 29.  Down the bottom of the second column, there is an asterisk there:

If the chin has proper projection, a line connecting the upper and lower lip will touch the most prominent portion of the chin (the pogonion).  Another criterion is visual examination is a vertical line ‑ ‑ ‑

So, as you can see from the photograph, the line just goes straight down; there is no overly projection at all, and I brought photographs, which the trial judge did have a look at, and that is the other evidence that was overlooked, apart from Professor Morrison’s report, which mentions damaged tissues and muscles.  I obviously have not time to go through the lot, but I would just like to say that on page 1 of my oral argument, the connections between Professor Morrison’s report and Dr Pelly’s operation was because Dr Rea had done an operation, Dr Rea wrote, and I have written down here, underlined:

The key piece of evidence overlooked was Dr Rea’s evidence about his own operation.  He wrote “The patient made an uninterrupted recovery from that operation . . . though she still did complain about some weird feeling in the lower lip on the right side, which she had prior to my operation?”

And:

Both Dr Carlisle and Professor Morrison noted continuous improvement following the remedial procedures of Dr Carlisle.

GAUDRON J:   Well, I think, Mrs Bridges, your time is really up, thank you.

MRS BRIDGES:   All right, well, thank you.

GAUDRON J:   Yes, thank you very much.

MRS BRIDGES:   Could I just say that the other scientific criteria was with Dr Skinner’s report, that she did not have, but Dr Moore did, but it is in the book.

GAUDRON J:   It is in which book, sorry?  In the big book?

MRS BRIDGES:   Well, Dr Skinner’s opinion was not based on anything in particular and, as I wrote, I did do a page on Dr Skinner and I did say that she based hers on irrelevant facts as well as some other aspects about her reports that was quite wrong, and, in fact, I really would like to go over it, quickly with ‑ ‑ ‑

GUMMOW J:   No.

GAUDRON J:   No, I am afraid, Mrs Bridges, this ‑ as I tried to explain to you before, purpose of a hearing such as this is to see if there is an error of law; it is not to review the evidence.  It is to see if there is an error of law which warrants the intervention of this Court, which is concerned to grant special leave, mainly where there is some important error of principle and not to review factual findings.

MRS BRIDGES:   Well, did what the judges were saying in the SRA v Earthline Constructions applicable at all?

GUMMOW J:   No, it is something you do not understand, I am afraid.

MRS BRIDGES:   Okay.

GAUDRON J:   Thank you very much, Mrs Bridges.  Mr Sullivan, we need not trouble you in this matter.

MR SULLIVAN:    If your Honour pleases.

GAUDRON J:   The applicant seeks special leave to appeal from the New South Wales Court of Appeal to challenge the treatment by that court of factual findings which were made at first instance and which ultimately led to the dismissal of her claim in negligence against Dr Pelly.

It is well established that an appellate court’s power to disturb factual findings is limited, particularly where those factual findings depend on issues of credibility.  The factual findings in the present case depend in large part upon the trial judge’s assessment of the applicant’s credibility.
To the extent that the factual findings depend on issues of credibility, the proposed appeal enjoys no prospect of success.

To the extent that the factual findings do not depend on the applicant’s credibility, they are findings that were open to the trial judge. Moreover, they involve no question of legal principle such as might appropriately attract the grant of special leave. 

Accordingly, special leave must be refused with costs.

We will adjourn now to reconstitute.

AT 12.23 PM THE MATTER WAS CONCLUDED